2015 -- H 5957 SUBSTITUTE A | |
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LC001781/SUB A | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2015 | |
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A N A C T | |
RELATING TO LABOR AND LABOR RELATIONS -- EMPLOYMENT SECURITY | |
BENEFITS | |
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Introduced By: Representative Robert D. Phillips | |
Date Introduced: March 20, 2015 | |
Referred To: House Labor | |
(Labor & Training) | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Sections 28-42-8 and 28-42-62.1 of the General Laws in Chapter 28-42 |
2 | entitled "Employment Security - General Provisions" are hereby amended to read as follows: |
3 | 28-42-8. Exemptions from "employment". -- "Employment" does not include: |
4 | (1) Domestic service in a private home performed for a person who did not pay cash |
5 | remuneration of one thousand dollars ($1,000) or more in any calendar quarter after December |
6 | 31, 1977, in the current calendar year, or the preceding calendar year to individuals employed in |
7 | that domestic service in a private home; |
8 | (2) Service performed by an individual in the employ of a sole proprietorship or LLC |
9 | single member filing as a sole proprietorship with the IRS for his or her son, daughter, or spouse, |
10 | and service performed by a child under the age of eighteen (18) in the employ of his or her father |
11 | or mother who is designated as a sole proprietorship or LLC single-member filing as a sole |
12 | proprietorship with the IRS, and service is performed by an individual under the age of eighteen |
13 | (18) in the employ of a partnership or LLC partnership consisting only of his or her parents or |
14 | domestic partners; |
15 | (3) Service performed in the employ of any other state, or any of its political |
16 | subdivisions, the United States government, an instrumentality of any other state or states or their |
17 | political subdivisions, or of an instrumentality of the United States, except, that if the Congress of |
18 | the United States permits states to require any instrumentalities of the United States to make |
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1 | payments into an unemployment fund under a state unemployment compensation act, then, to the |
2 | extent permitted by Congress, and from and after the date as of which permission becomes |
3 | effective, all of the provisions of chapters 42 -- 44 of this title shall be applicable to those |
4 | instrumentalities and to services performed for those instrumentalities, in the same manner, to the |
5 | same extent, and on the same terms, as to all other employers, employing units, individuals, and |
6 | services. If this state is not certified by the Secretary of Labor under 26 U.S.C. § 3304 for any |
7 | year, then the payments required of those instrumentalities with respect to that year shall be |
8 | deemed to have been erroneously collected within the meaning of § 28-43-12 and shall be |
9 | refunded by the director from the fund in accordance with § 28-43-12; |
10 | (4) Service performed: |
11 | (i) In the employ of: |
12 | (A) A church or convention or association of churches, or |
13 | (B) An organization that is operated primarily for religious purposes and that is operated, |
14 | supervised, controlled, or principally supported by a church or convention or association of |
15 | churches; |
16 | (ii) By a duly ordained, commissioned, or licensed minister of a church in the exercise of |
17 | his or her ministry or by a member of a religious order in the exercise of duties required by that |
18 | order; |
19 | (iii) In a facility conducted for the purpose of carrying out a program of rehabilitation for |
20 | individuals whose earning capacity is impaired by age, physical or mental deficiency, or injury or |
21 | providing remunerative work for individuals who, because of their impaired physical or mental |
22 | capacity, cannot be readily absorbed in the competitive labor market, by an individual receiving |
23 | that rehabilitation or remunerative work; |
24 | (iv) As part of an unemployment work relief or work-training program assisted or |
25 | financed in whole, or in part, by any federal agency or an agency of a state or one of its political |
26 | subdivisions, by an individual receiving that work relief or work training; |
27 | (v) In the employ of a hospital by a patient of the hospital; or |
28 | (vi) By an inmate of a custodial or penal institution; |
29 | (5) Service with respect to which unemployment compensation is payable under an |
30 | unemployment compensation system established by an act of Congress. The director is authorized |
31 | and directed to enter into agreements with the proper agencies under that act of Congress, which |
32 | agreements shall become effective ten (10) days after their publication as in the manner provided |
33 | in § 28-42-34, to provide reciprocal treatment to individuals who have, after acquiring potential |
34 | rights to benefits under chapters 42 -- 44 of this title, acquired rights to unemployment |
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1 | compensation under that act of Congress, or who have, after acquiring potential rights to |
2 | unemployment compensation under that act of Congress, acquired rights to benefits under those |
3 | chapters; |
4 | (6) Service covered by an election duly approved by the agency charged with the |
5 | administration of any other state or federal employment security law in accordance with an |
6 | arrangement pursuant to § 28-42-58 during the effective period of that election, except as |
7 | provided in § 28-42-3(15)(i) 28-42-3(16)(i); |
8 | (7) Services performed by an individual, in any calendar quarter on or after January 1, |
9 | 1972, in the employ of any organization exempt from income tax under 26 U.S.C. § 501(a)(other |
10 | than services performed for an organization defined in § 28-42-3(24) 28-42-3(25) or for any |
11 | organization described in 26 U.S.C. § 401(a) or under 26 U.S.C. § 521) if the remuneration for |
12 | that service is less than fifty dollars ($50.00); |
13 | (8) Service that is occasional, incidental, and occurs irregularly, and is not in the course |
14 | of the employing unit's trade or business. Service for a corporation shall not be excluded; |
15 | (9) Service as a golf caddy, except as to service performed solely for a club with respect |
16 | to which the club alone bears the expense. A golf caddy, except as in this specifically provided |
17 | subdivision, shall not be construed to be an "employee" as defined in § 28-42-3(14) 28-42-3(15); |
18 | (10) Notwithstanding any provisions of titles 5 and 27, service performed by an |
19 | individual as a real estate salesperson if all the service performed by that individual is performed |
20 | for remuneration solely by way of commission; |
21 | (11) Notwithstanding any provisions of titles 5 and 27, service performed by an |
22 | individual as an insurance broker, agent, or subagent if all the service performed by that |
23 | individual is performed for remuneration solely by way of commission. This exemption shall not |
24 | apply to service performed as industrial and debit insurance agents; |
25 | (12) Service performed by an individual who is enrolled at a nonprofit or public |
26 | educational institution that normally maintains a regular faculty and curriculum and normally has |
27 | a regular organized body of students in attendance at the place where its educational activities are |
28 | carried on, as a student in a full-time program, taken for credit at that institution that combines |
29 | academic instruction with work experience, if that service is an integral part of that program, and |
30 | that institution has so certified to the employer, except that this subdivision shall not apply to |
31 | service performed in a program established for, or on behalf of, an employer or group of |
32 | employers; |
33 | (13) Service performed by an individual on a boat engaged in catching fish or other |
34 | forms of aquatic animal life under an arrangement with the owner or operator of that boat |
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1 | pursuant to which: |
2 | (i) That individual does not receive any cash remuneration other than a share of the |
3 | boat's catch of fish or other forms of aquatic animal life or a share of the proceeds from the sale |
4 | of that catch; and |
5 | (ii) The operating crew of that boat is normally made up of fewer than ten (10) |
6 | individuals; and |
7 | (14) Services performed by a member of an Americorps program. ; and |
8 | (15) Services performed by a self-employed individual. |
9 | 28-42-62.1. Fraud and abuse. -- (a) (1) It shall be unlawful to do any of the following: |
10 | (A) Make or cause to be made any knowingly false or fraudulent material statement or |
11 | material representation for the purpose of obtaining or denying any benefits; |
12 | (B) Present or cause to be presented any knowingly false or fraudulent written or oral |
13 | material statement in support of, or in opposition to, any claim for benefits or petition regarding |
14 | the continuation, termination or modification of benefits; |
15 | (C) Knowingly assist, aid and abet, solicit, or conspire with any person who engages in |
16 | an unlawful act under this section; |
17 | (D) Willfully misrepresent or fail to disclose any material fact in order to avoid or reduce |
18 | any contribution or other payment required of an employing unit under chapters 42 -- 44 of this |
19 | title; |
20 | (E) Willfully fail to report or provide false or misleading information regarding |
21 | ownership changes as required by regulations promulgated by the department. |
22 | (F) Willfully make or require any deduction from wages to pay all or any portion of the |
23 | contributions required from employers, or try to induce any individual to waive any right under |
24 | chapters 42-44 of this title. |
25 | (2) For purposes of this section, "statement" includes, but is not limited to, the receipt of |
26 | unemployment benefits deposited to a direct deposit account or electronic payment card, any |
27 | endorsement of a benefit check, application for registration, oral or written statement or report, |
28 | proof of unemployment, or other documentation offered as proof of, or the absence of, |
29 | entitlement to benefits or the amount of benefits. |
30 | (3) If it is determined that any person concealed or knowingly failed to disclose that |
31 | which is required by law to be revealed, knowingly gave or used perjured testimony or false |
32 | evidence, knowingly made a false statement of fact, participated in the creation or presentation of |
33 | evidence which he knows to be false, or otherwise engaged in conduct in violation of this section, |
34 | that person shall be guilty of a misdemeanor and subject in criminal proceedings to a fine and/or |
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1 | penalty not exceeding one thousand dollars ($1,000), or double the value of the fraud, whichever |
2 | is greater, or by imprisonment up to one year in state prison, or both. |
3 | (4) Beginning October 1, 2013, whenever the director establishes that an erroneous |
4 | payment was made to an individual due to fraud committed by the individual, that individual will |
5 | be assessed a penalty equal to fifteen percent (15%) of the amount of the erroneous payment. All |
6 | penalties assessed and collected under this subsection shall be immediately deposited into the |
7 | employment security fund. |
8 | (b) The director, in consultation with the attorney general, shall establish a form to give |
9 | notice that the endorsement of a benefit check sent or the receipt of unemployment benefits |
10 | deposited to a direct deposit account or electronic payment card pursuant to chapter 44 of this title |
11 | is the endorser's affirmation that he or she is qualified to receive benefits under the employment |
12 | security act. The notice shall be sent to all individuals who are presently receiving benefits and |
13 | given to those who file claims for benefits in the future. |
14 | SECTION 2. Sections 28-44-12, 28-44-18 and 28-44-38 of the General Laws in Chapter |
15 | 28-44 entitled "Employment Security - Benefits" are hereby amended to read as follows: |
16 | 28-44-12. Availability and registration for work. -- (a) An individual shall not be |
17 | eligible for benefits for any week of his or her partial or total unemployment unless during that |
18 | week he or she is physically able to work full-time and be available for full-time work. To prove |
19 | availability for work, every individual partially or totally unemployed shall register for work and |
20 | shall: |
21 | (1) File a claim for benefits within any time limits, with any frequency, and in any |
22 | manner, in person or in writing, as the director may prescribe; |
23 | (2) Respond whenever duly called for work through the employment office; and |
24 | (3) Make an active, independent search for suitable full-time work. |
25 | (b) If an unemployed individual has been determined to be likely to exhaust regular |
26 | benefits and to need reemployment services pursuant to a profiling system established by the |
27 | director, the individual shall be eligible to receive benefits with respect to any week only if the |
28 | individual participates in reemployment services, such as job search assistance services, unless |
29 | the director determines that: |
30 | (1) The individual has completed those services; or |
31 | (2) There is justifiable cause for the individual's failure to participate in those services. |
32 | 28-44-18. Discharge for misconduct. – (a) For benefit years beginning prior to July 1, |
33 | 2012, an individual who has been discharged for proved misconduct connected with his or her |
34 | work shall become ineligible for waiting period credit or benefits for the week in which that |
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1 | discharge occurred and until he or she establishes to the satisfaction of the director that he or she |
2 | has, subsequent to that discharge, had at least eight (8) weeks of work, and in each of that eight |
3 | (8) weeks has had earnings of at least twenty (20) times the minimum hourly wage as defined in |
4 | chapter 12 of this title for performing services in employment for one or more employers subject |
5 | to chapters 42 -- 44 of this title. For benefit years beginning on or after July 1, 2012, and prior to |
6 | July 6, 2014, an individual who has been discharged for proved misconduct connected with his or |
7 | her work shall become ineligible for waiting period credit or benefits for the week in which that |
8 | discharge occurred and until he or she establishes to the satisfaction of the director that he or she |
9 | has, subsequent to that discharge, had at least eight (8) weeks of work, and in each of that eight |
10 | (8) weeks has had earnings greater than, or equal to, his or her weekly benefit rate for performing |
11 | services in employment for one or more employers subject to chapters 42 -- 44 of this title. For |
12 | benefit years beginning on or after July 6, 2014, an individual who has been discharged for |
13 | proved misconduct connected with his or her work shall become ineligible for waiting-period |
14 | credit or benefits for the week in which that discharge occurred and until he or she establishes to |
15 | the satisfaction of the director that he or she has, subsequent to that discharge, had earnings |
16 | greater than, or equal to eight (8) times, his or her weekly benefit rate for performing services in |
17 | employment for one or more employers subject to chapters 42 -- 44 of this title. Any individual |
18 | who is required to leave his or her work pursuant to a plan, system, or program, public or private, |
19 | providing for retirement, and who is otherwise eligible, shall under no circumstances be deemed |
20 | to have been discharged for misconduct. If an individual is discharged and a complaint is issued |
21 | by the regional office of the National Labor Relations board or the state labor relations board that |
22 | an unfair labor practice has occurred in relation to the discharge, the individual shall be entitled to |
23 | benefits if otherwise eligible. For the purposes of this section, "misconduct" is defined as |
24 | deliberate conduct in willful disregard of the employer's interest, or a knowing violation of a |
25 | reasonable and uniformly enforced rule or policy of the employer, provided that such violation is |
26 | not shown to be as a result of the employee's incompetence. Notwithstanding any other provisions |
27 | of chapters 42 -- 44 of this title, this section shall be construed in a manner that is fair and |
28 | reasonable to both the employer and the employed worker. |
29 | (b) For the purposes of chapters 42 through 44 of this title, a suspension without pay from |
30 | work shall be treated as a discharge for misconduct and subject to the same conditions as a |
31 | discharge for misconduct in accordance with subsection (a) of this section. |
32 | 28-44-38. Filing of claims -- Procedures -- Printed copies -- Notices. -- (a) Claims for |
33 | waiting period credit and for benefits shall be filed in accordance with regulations adopted as |
34 | prescribed. Each employer shall post and maintain printed copies or statements of those |
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1 | regulations in places readily accessible to individuals employed by him or her. The director shall |
2 | supply each employer with copies of those regulations or statements of the regulations without |
3 | cost to the employers. |
4 | (b) The director shall prescribe the type of reports required from employers and the |
5 | manner in which the reports shall be presented. |
6 | (c) Upon the filing of a claim, the director shall promptly mail a notice of the filing of |
7 | the claim to the claimant's notify the most recent employer and to all employers for whom the |
8 | claimant states he or she performed services and earned wages during his or her base period. The |
9 | employers shall promptly furnish the information required to determine the claimant's benefit |
10 | rights. If the claimant's employer or employers have any information which might affect either |
11 | the validity of the claim or the right of the claimant to waiting period credit or benefits, he or she |
12 | shall return the notice with that information. If an employer fails without good cause as |
13 | established to the satisfaction of the director to return this notice within seven (7) ten (10) |
14 | working days of its mailing, the employer shall have no standing to contest any determination to |
15 | be made by the director with respect to the claim and any benefit charges pursuant to it, and the |
16 | employer shall be barred from being a party to any further proceedings relating to the claim. |
17 | Notwithstanding any inconsistent provisions of chapters 42 -- 44 of this title, any employer who |
18 | fails to return the notice within that time shall pay a penalty of twenty-five dollars ($25.00) for |
19 | each failure. The preceding penalty shall be paid into the employment security tardy account |
20 | fund, and if any employer fails to pay the penalty, when assessed, it shall be collected by civil |
21 | action as provided in § 28-43-18. |
22 | SECTION 3. This act shall take effect upon passage. |
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LC001781/SUB A | |
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EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO LABOR AND LABOR RELATIONS -- EMPLOYMENT SECURITY | |
BENEFITS | |
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1 | This act would exempt services performed by self-employed individuals from the |
2 | definitions of employment for employment security benefit purposes. It would also allow |
3 | unemployment benefit checks to be directly deposited to an account or through the use of an |
4 | electronic payment card. It would clarify the law so that workers that work full-time would be |
5 | ineligible for unemployment benefits. Finally, it would render employees who are suspended |
6 | without pay from work at the time of their discharge from being eligible for unemployment |
7 | benefits. |
8 | This act would take effect upon passage. |
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LC001781/SUB A | |
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